Schmidt urges Kansas Supreme Court to reconsider ruling on constitutional right to abortion

TOPEKA — Kansas Attorney General Derek Schmidt is asking the Kansas Supreme Court to reconsider its decision that a law prohibiting an abortion procedure violates the state constitution.

Schmidt, who is seeking the Republican nomination for governor, announced Wednesday he would again challenge the legal interpretation that the Kansas Constitution’s Bill of Rights contains a fundamental right to abortion.

The Schmidt announcement follows a ruling in April by Shawnee County District Judge Teresa Watson — the latest legal action in a landmark abortion rights case known as Hodes and Nauser v Schmidt. Watson based her ruling on the 2019 decision by the Supreme Court in the same case.

Former Gov. Jeff Colyer, who is running against Schmidt for the right to challenge Democratic Gov. Laura Kelly in next year’s election, said the ruling and the Supreme Court were “wildly out of step” with Kansas law in this decision.

“This terrible ruling is the result of a terrible court,” Colyer said. “We need not only a constitutional amendment fixing this ruling but one fixing this out-of-control liberal court.”

The Supreme Court said the constitutional right to personal autonomy “allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.”

Kansas has been unable to enforce a 2015 ban on dilation and evacuation, a procedure used for 95% of patients who terminate a pregnancy in the second trimester, because of a lawsuit from two abortion providers. The Supreme Court’s 6-1 ruling establishing a right to abortion came via that lawsuit before the case returned to the district court for further review.

“After today, any plaintiff who can articulate a supposed ‘natural right’ unspecified by our state Constitution but somehow divined by a thin majority of four Justices can defeat the democratic process with no recourse for the will of the people except by constitutional amendment,” Schmidt said following the the 2019 ruling. “Over time, the result will inevitably be more public policy debates settled in Kansas courtrooms rather than the Statehouse, shaped principally by the arguments of lawyers rather than the broader will of the people.”

Schmidt also has urged Congress to keep the Hyde Amendment, which prohibits taxpayer-funded abortions, in the 2022 budget.

The Kansas Legislature, following a failed attempt in 2020, responded to the high court ruling this year when it backed an amendment to the state’s constitution that would eliminate the right to an abortion. GOP majorities in both chambers opted to place the amendment before a public vote on the August 2022 primary ballot.

Julie Burkhart, founder and CEO of the Trust Women Foundation, said the amendment is a “flagrant attack” on the Supreme Court decision and would result in worse health outcomes for Kansans.

“By removing the constitutional right to abortion, the amendment allows lawmakers to create regulations that are not medically relevant and may inflict undue emotional or physical harm to people seeking abortion care,” Burkhart said. “It has been clear from the beginning of this process that the backers of this amendment do not have the best interest of women and families in mind. Abortion care is health care, and access to both is critical for everyone.”